## Facts

- Colorado funded higher education through public universities and need-based and merit-based aid programs for in-state students attending Colorado institutions.
- Several aid programs limited student eligibility to attendance at an “institution of higher education,” a statutory definition that excluded any “pervasively sectarian or theological institution.”
- The Colorado Commission on Higher Education (CCHE) used a multi-factor test to determine whether a school was “pervasively sectarian,” including inquiries into academic freedom, mandatory religious services, governance adherence to doctrine, religious composition of faculty and students, and whether theology courses tended to “indoctrinate or proselytize.”
- Colorado Christian University (CCU), a nondenominational evangelical Protestant university, applied to participate so its students could receive state aid.
- CCHE deemed CCU “pervasively sectarian” and ineligible, while permitting aid for students at other religiously affiliated institutions, including a Jesuit Catholic university and a Methodist university.
- CCU sued state higher-education officials in federal district court, alleging violations of the Free Exercise and Establishment Clauses and Equal Protection.
- The district court granted summary judgment for the state; CCU appealed.

## Issues

1. Whether excluding “pervasively sectarian” institutions from generally available state scholarship programs violates the First Amendment by discriminating among religious institutions.
2. Whether the statutory criteria requiring the state to assess the degree and character of a school’s religiosity constitute unconstitutional governmental scrutiny and entanglement with religious belief and practice.
3. Whether Locke v. Davey permits a state to deny otherwise available student aid based on a school’s perceived level of sectarian character while providing aid to other religious institutions.

## Decision

- The Tenth Circuit reversed the district court and directed entry of summary judgment for CCU.
- The court held the exclusion of “pervasively sectarian” institutions from the scholarship programs unconstitutional on two independent grounds:
  - the scheme expressly discriminated among religions without sufficient justification; and
  - the scheme required unconstitutionally intrusive scrutiny of religious belief and practice.
- The court rejected the state’s reliance on Locke v. Davey as justification for the challenged exclusion.

## Legal Principles

- Government programs distributing generally available public benefits must maintain denominational neutrality and may not favor some religious traditions or forms of religious education over others.
- A state may not condition participation in neutral aid programs on a government assessment of whether religious instruction or governance is too “indoctrinating,” too doctrinal, or otherwise insufficiently “acceptable” by state standards.
- State fact-finding that evaluates religious content, religious requirements, or doctrinal conformity can violate the Religion Clauses by entangling officials in judgments about religious belief and practice.
- Locke v. Davey permits a limited, targeted withholding of funds for training for the ministry, but does not authorize discrimination among religious institutions based on degree or type of religiosity.

## Conclusion

Colorado’s “pervasively sectarian” exclusion was invalid because it both treated religious institutions unequally based on their perceived religious character and compelled state officials to make detailed, content-based judgments about religious teaching and governance as a prerequisite for student aid.


Colo. Christian Univ. v. Weaver, 534 F.3d 1245 (10th Cir. 2008)